The Supreme Court today delivered a landmark unanimous judgment
in the case of Michael Darnley v Croydon Health Services NHS Trust
which will have repercussions throughout the health service
(judgment here).

Facts

In May 2010 Mr Darnley suffered a head injury in an assault and
attended Croydon Health Services NHS Trust's Mayday Hospital.
It was accepted by the trial judge that he was told by the A&E
receptionist on arrival that he would be seen by a clinician within
four to five hours.

As he felt too unwell to remain, Mr Darnley left the hospital
after 19 minutes not knowing that a triage nurse would examine him
within 30 minutes of arrival. His condition subsequently got worse,
and by the time he returned to hospital by ambulance it was sadly
too late to prevent permanent brain damage.

Mr Darnley alleged a breach of duty by the reception staff
concerning the information he was given about the time he would
have to wait.

Both the High Court and Court of Appeal dismissed the claim on
the grounds that neither the receptionist nor the health trust
acting by the receptionist owed any duty to advise about waiting
times, the damage was outside the scope of any duty owed, and there
was no causal link between any breach of duty and the injury.

Supreme Court Judgment

The Supreme Court unanimously allowed Mr. Darnley's appeal,
holding:

The case falls squarely within an
established category of duty of care: it has long been established
that such a duty is owed to patients by those who provide and run a
casualty department. The duty is to take reasonable care not to
cause physical injury to the patient. In the present case, as soon
as Mr Darnley was 'booked in' at reception he entered into
a relationship with the Trust of patient and healthcare provider.
The scope of this duty of care extends to a duty to take reasonable
care not to provide misleading information which may foreseeably
cause physical injury.

The duty of care is owed by the Trust
and it is not appropriate to distinguish, in this regard, between
medical and non-medical staff. The respondent had charged its
non-medically qualified staff with the role of being the first
point of contact for persons seeking medical assistance and, as a
result, with the responsibility for providing accurate information
as to its availability.

Observations on the social cost of
imposing such a duty of care are misplaced as this is not a new
head of liability for NHS health trusts and, in any event, the
undesirable consequences of imposing the duty in question were
considerably overstated. The Court did, however, acknowledge that
the very difficult circumstances under which A&E departments
operate "may well prove highly influential in many cases when
assessing whether there has been a negligent breach of
duty"

It was negligent of the receptionist
to inform Mr. Darnley that he would have to wait for up to 4 to 5
hours before being seen by a doctor, in the circumstances that the
receptionists knew that the correct information was that he could
expect to be seen by a triage nurse within 30 minutes.

Mr Darnley's decision to leave
was reasonably foreseeable and was made, at least in part, on the
basis of the misleading information. The trial judge had already
found that had Mr Darnley been told he would be seen within 30
minutes he would have waited, been seen by a doctor and admitted,
and the inpatient treatment would have led to a nearly full
recovery. Thus, the fact Mr Darnley had walked out of A&E did
not break the chain of causation and causation was
established.

Analysis

This is the first case in England where an A&E receptionist
has been found negligent for giving inaccurate information about
waiting times to a patient. The Supreme Court has made it clear
that the status of an employee of an organisation is not relevant
to whether the organisation owes a duty of care (as distinct from
the status of that employee being a factor to take into account
when considering whether there has been a breach of that duty).
Non-medical staff such as receptionists can make an organisation
liable if misleading information is provided leading to injury.
This is likely to mainly affect A&E/Urgent Care but has
repercussions for all healthcare providers, including primary
care.

It is hoped that this will not lead to receptionists being told
to say nothing to patients apart from asking for details.
Information they give is often helpful to patients. The Supreme
Court specifically stated that it is not suggested that A&E
receptionists have to provide detailed, up to the minute
information about exact waiting times – that is simply not
possible. General information about triage and waiting times is
fine as long as it is reasonably accurate and not misleading. That
might entail, as the court suggested, the use of leaflets or
notices.

Healthcare providers need to ensure both medical and non-medical
staff who interact with patients take steps to ensure patients are
provided with reasonably accurate information about waiting times
including information about when medical assistance is likely to be
available. It now may have legal consequences if it is
misleading.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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